Uncertainty over signing of 123 agreement during Rice visit

India ‘ok’ with draft Bush statement, will contest U.S. interpretations later...

4 October 2008
The Hindu

Uncertainty over signing of 123 agreement during Rice visit

Siddharth Varadarajan

New York: Even as Secretary of State Condoleezza Rice wends her way across to New Delhi, there is uncertainty over whether the bilateral nuclear cooperation agreement passed by Congress earlier this week will be ready for signing during her two-day visit to India.

Days after the House of Representatives acted to approve the ‘123 agreement,’ the Senate, on October 1, passed an identical version of the United States-India Nuclear Cooperation Approval and Nonproliferation Enhancement Act. However, an ‘engrossed’ copy of the Act — an official copy certified by the Secretary of the Senate — had yet to be sent across to the White House at the time of going to press on Friday.

The U.S. is keen for the 123 to be formally concluded during Dr. Rice’s visit and had suggested to India that the two sides could always sign the text even before President Bush signs it into law. However, the Indian government insisted that all legal formalities, including the release of a presidential signing statement, be concluded on the U.S. side first.

According to sources, the White House has shared the text of the statement Mr. Bush will make when he signs the Act, known as the HR 7081, into law with the Indian side and the latter are “basically OK with it.” The statement is intended to address Indian concerns by seeking to “improve the atmospherics” and stressing the importance of nuclear commerce with India rather than by undoing the riders Congress has attached to the 123.

While India fully intends to place its own understandings about the 123 Agreement in the public domain — thereby contesting these American reservations — the sources said this would be done at the time of India’s own choosing. Though a final decision has yet to be taken, one of the options being considered is the handing over of a Note Verbale to the U.S. at the time when diplomatic notes are formally exchanged for the 123 Agreement to enter into force.
Assurances

The sources said the presidential statement would not repudiate any of the Act’s legal provisions such as those which provide for an India-specific procedure for Congress to approve the yet-to-be-negotiated reprocessing arrangements. Nor will it repudiate the provision that the 123 Agreement shall be “subject to the provisions” of the Hyde Act, the Atomic Energy Act and “any other applicable U.S. law.”

The sources said that even as far as the ‘declaration of policy’ part of HR 7081 are concerned, Mr. Bush’s statement will not repudiate section 102(a) which stipulates that the 123 Agreement’s provision “have the meanings conveyed in the authoritative representations provided by the President and his representatives to the Congress and its committees prior to September 20, 2008, regarding the meaning and legal effect of the Agreement,” i.e. that the fuel supply assurances in the 123 will not be legally binding.